Cinema Blue of Charlotte, Inc. v. Gilchrist

• Decision Date: 13 January 1989
• Docket Number: No. C-C-88-557-M.,C-C-88-557-M.
• Court: U.S. District Court — Western District of North Carolina
• Parties: CINEMA BLUE OF CHARLOTTE, INC., Jim St. John, and Curtis Rene Peterson, Plaintiffs, v. Peter S. GILCHRIST, III, District Attorney of the Twenty-Sixth Prosecutorial District, in his official capacity, Defendant.

704 F. Supp. 631

CINEMA BLUE OF CHARLOTTE, INC., Jim St. John, and Curtis Rene Peterson, Plaintiffs, v. Peter S. GILCHRIST, III, District Attorney of the Twenty-Sixth Prosecutorial District, in his official capacity, Defendant.

No. C-C-88-557-M.

United States District Court, W.D. North Carolina, Charlotte Division.

January 13, 1989.

Nelson M. Casstevens, Jr., Charlotte, N.C., Lee J. Klein, Durand, Mich., George Daly, Calvin Murphy, Charlotte, N.C., for plaintiffs.

Harold M. White, Jr., N.C. Dept. of Justice, Raleigh, N.C., for defendant.

MEMORANDUM OF DECISION

McMILLAN, District Judge.

On December 23, 1988, plaintiffs filed this action pursuant to 42 U.S.C. § 1983, alleging that defendant has deprived them of their rights under the First, Sixth and Fourteenth Amendments. In the complaint, plaintiffs seek declaratory relief and have moved that, pending final trial and determination, the court preliminarily enjoin defendant. Plaintiffs' motion for preliminary injunction was heard on January 10, 1989.

FINDINGS OF FACT

1. Plaintiff Cinema Blue of Charlotte, Inc. ("Cinema Blue"), is a corporation organized under the laws of North Carolina, and has the capacity to sue in its own name. Plaintiffs Jim St. John ("St. John") and Curtis Rene Peterson ("Peterson") are citizens and residents of Michigan.

2. Defendant Peter S. Gilchrist, III ("Gilchrist"), is the duly elected District Attorney for the Twenty-Sixth Prosecutorial District, State of North Carolina, and is being sued in his official capacity. The Twenty-Sixth Prosecutorial District is comprised of Mecklenburg County, North Carolina. Defendant is "responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district." N.C. CONST. art. IV, § 18.

3. Plaintiffs have been charged with multiple counts of disseminating obscenity, a felony under N.C.Gen.Stat. § 14-190.1 (1986), and with conspiring to disseminate obscenity. Plaintiffs are scheduled to be tried on these charges in the Superior Court of Mecklenburg County, North Carolina, beginning on February 13, 1989.

4. Under North Carolina law, material is obscene if:

(1) The material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (c) of this section; and

(2) The average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and

(3) The material lacks serious literary, artistic, political, or scientific value....

N.C.Gen.Stat. § 14-190.1(b)(1-3).

5. Plaintiffs wish to defend against the obscenity charges at their trial in state court by offering expert testimony that the videotapes and magazines at issue are not obscene. Plaintiffs have engaged Dr. Joseph E. Scott, Associate Professor of Sociology at Ohio State University, as one of their experts in the state court criminal cases.

6. Dr. Scott proposes to develop testimony on whether the materials at issue are obscene, as defined in N.C.Gen.Stat. § 14-190.1(b), by presenting some or all of the materials to "focus groups," randomly selected groups of Mecklenburg County adults, for two main purposes. First, Dr. Scott will assess the attitudes of the focus group members toward the materials and then extrapolate from those findings, using sociological and statistical techniques, to a conclusion as to whether the materials are within the statutory definition of obscenity. Second, Dr. Scott proposes to use the focus groups to validate certain language which specifically describes the nature and content of the sexual activities in the materials at issue. This language then will be used in conducting telephone surveys of community attitudes toward the materials.

7. On December 5, 1988, the Honorable Marvin K. Gray, Superior Court Judge, heard all pending motions in the state criminal prosecutions. On the morning of December 5, plaintiffs told defendant Gilchrist of their plans to develop expert testimony by exhibiting the materials at issue to focus groups conducted by Dr. Scott. Defendant Gilchrist told plaintiffs' counsel that exhibition of the materials at issue by plaintiffs' expert to focus groups in Mecklenburg County would be illegal. Gilchrist refused to agree to the entry of a court order allowing plaintiffs' expert to display the materials to members of the public. Gilchrist also refused to agree not to prosecute plaintiffs' expert.

8. During argument on the pending motions, plaintiffs moved orally that the Superior Court enter a protective order enjoining prosecution of Dr. Scott for dissemination of obscenity if he exhibited the materials to focus groups. In response to the oral motion, defendant Gilchrist confirmed to the court that, in his opinion, dissemination of the materials at issue in the criminal prosecutions to the public by plaintiffs' expert would be illegal. The court denied the motion for protective order from the bench. On December 20, 1988, plaintiffs, by leave of the Superior Court, filed the motion for protective order in written form. The Superior Court denied the motion in an order filed December 30, 1988.

9. At the January 10 hearing in this court, defendant Gilchrist testified that he still believes that exhibition of the materials by plaintiffs' expert in preparation of their defense is illegal. Defendant conceded that plaintiffs' apprehensions of prosecution are reasonable.

10. There are twelve different magazines and motion pictures at issue in the state criminal prosecutions. In the complaint plaintiffs alleged that none of the materials at issue in the state criminal prosecutions had been judged obscene in the pending prosecutions "or in any other action of which Plaintiffs are advised." Defendant introduced evidence that five of the materials in the pending prosecutions have been judged obscene in two related prosecutions. Plaintiffs concede that defendant is correct and have limited their request for preliminary relief and declaratory relief to the remaining seven materials.

11. Dr. Scott has refused to proceed with the development of expert testimony, if he will be subject to prosecution by defendant.

12. The Concerned Charlotteans are a group founded in early 1984 to address to the pornography issue and other moral issues which affect the Charlotte community. The group has engaged in political and religious opposition to pornography. The group has attempted to educate the public about what materials are being disseminated in the community. In 1985, the group held an exhibition at First Baptist Church in Charlotte. Joseph R. Chambers, President of the Concerned Charlotteans, testified in this court that "sexually explicit" material was displayed at the exhibition; however, he could not recall clearly the nature and extent of the sexual conduct depicted in the materials. Robert F. Thomas, an attorney with the Charlotte Police Department, attended the exhibition and viewed some of the materials, none of which he judged to be obscene. Defendant Gilchrist was aware that the exhibition was held, but took no steps to investigate or prosecute.

13. In March, 1984, or March, 1985, the University of North Carolina at Charlotte Department of Criminal Justice, the Charlotte Police Department and the Federal Bureau of Investigation sponsored a workshop on the interrelationship of the problems of missing children, child pornography and serial murders. Sexually explicit material, which included deviant homosexual acts with children, was displayed at the workshop. Although not generally publicized, the exhibition was essentially open to the public. Law enforcement officials in the Charlotte area, UNCC students and the press specifically were invited to the workshop. The defendant's office may have received an invitation. This is the only evidence presently on the record that defendant had knowledge of the workshop. The defendant took no action to investigate or prosecute the sponsors of the workshop.

CONCLUSIONS OF LAW

The court first must decide whether it may issue any ruling in this action. Defendant argues that the court should abstain; that is, "dismiss or postpone decision of a controversy clearly within its jurisdiction, in deference to a possible decision by a state court." McMillan, "Abstention — The Judiciary's Self-Inflicted Wound," 56 N.C.L.Rev. 527 (1978). The court's initial reaction to the complaint was to abstain. However, in this case, abstention is not appropriate. Plaintiffs are not asking the court to enjoin prosecution of the obscenity charges against them scheduled for trial commencing February 13, 1989. If asked, the court would abstain from enjoining those pending state court criminal prosecutions. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Instead, plaintiffs are asking the court to enjoin the threatened prosecution of their expert if he aids them in their defense against those charges. The court may properly enjoin threatened criminal prosecutions. Doran v. Salem Inn, Inc., 422 U.S. 922, 930, 95 S.Ct. 2561, 2567, 45 L.Ed.2d 648 (1975). Thus, the court will not abstain.

In Doran, the Supreme Court restated the traditional standard for granting a preliminary injunction.

The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits. It is recognized, however, that a district court must weigh carefully the interests on both sides.

422 U.S. at 931, 95 S.Ct. at 2568. The Fourth Circuit has elaborated on the traditional standard for issuing preliminary injunctions and the need for balancing the interests of the parties. Blackwelder Furniture Company of Statesville, Inc. v. Seilig Manufacturing Company, Inc., 550 F.2d 189 (4th Cir.1977).

The correct trial court standard in the Fourth...